Legal Research
Cases
Spacorp Australia Pty Ltd v Myer Stores Ltd

Spacorp Australia Pty Ltd v Myer Stores Ltd

Link copied

Case Copied 14 June 2001 33 min read

Contents

On this page

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 6558 of 2000

SPACORP AUSTRALIA PTY. LTD.
	Appellant
v.
MYER STORES LTD.	Respondent

---

JUDGES:	BROOKING, ORMISTON and CHARLES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 April 2001
DATE OF JUDGMENT:	14 June 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 89

---

CORPORATIONS – Winding-up – “Statutory” demand under s.459E of Corporations Law – Advance to company setting up business in department store – Construction of agreement – Whether “moneys owing” on termination – Whether “genuine dispute” within meaning of s.459H of Law.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J.D. Merralls, Q.C. Mr J.A. Nolan	Lewenberg & Lewenberg
For the Respondent	Mr D.H. Denton Mr R.W. Short	Phillips Fox

BROOKING, J.A.:
CHARLES, J.A.:

This appeal is concerned with whether, on an application to set aside a statutory demand served under s.459E of the Corporations Law, there was, within the meaning of s.459H, a “genuine dispute” between the company and the respondent about the existence of a debt. The judgment of Ormiston, J.A. shows the circumstances in which the appeal arises and deals with the arguments advanced on the appeal and indeed certain other arguments. The Master thought there was a genuine dispute; the judge thought otherwise and set aside the statutory demand.

Having considered her Honour’s reasons for decision and the arguments advanced on each side before us, we, like Ormiston, J.A., are of the view that leave to appeal, if needed, should be given and that the appeal should be allowed, since a genuine dispute had been shown to exist. Thus the statutory demand will be set aside.

The only question for us is whether the judge erred in determining that there was no genuine dispute. One can of course differ from the judge without deciding that the debt did not exist. A great range of states of mind on what we might call the ultimate question – the existence of the debt – may accompany the view that there is a genuine dispute, ranging from a clear conviction that the debt does not exist to the opinion that the genuine dispute hurdle has only just been cleared.

We think, if we may say so, that, except in a case in which it is as plain as a pikestaff that there is no debt (where bluntness may be in the interests of both sides), judges should, in general at all events, in dealing, whether at first instance or on appeal, with the question of genuine dispute, be at pains to perform the admittedly delicate task of disposing of that question without expressing a view on what we have called the ultimate question. For otherwise, on an application which resembles if it is not in law an interlocutory one, things may be said which embarrass the judge before whom the ultimate question comes.

This being so, we think we should make it clear that, in joining in the allowance of this appeal, we express no opinion on the ultimate question…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Spacorp Australia Pty Ltd v Myer Stores Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] VSCA 89
Decision Date: 14 June 2001

CaseChat Overview and Summary

Spacorp Australia Pty Ltd initiated legal proceedings against Myer Stores Ltd, seeking a declaration regarding the interpretation of an agreement between the two parties. This agreement stipulated that Spacorp would establish a business within a department store owned by Myer. The case was heard in the Supreme Court of New South Wales. The primary focus of the dispute was whether an advance made by Myer to Spacorp constituted moneys owing upon the termination of their agreement, and if there existed a genuine dispute regarding this matter within the scope of section 459H of the Corporations Law.

The court needed to determine the precise meaning of the contractual terms and whether the advance constituted moneys owed to Spacorp upon the termination of their agreement. Additionally, the court had to decide if a genuine dispute existed regarding the nature of the advance, thereby potentially invalidating a statutory demand issued by Spacorp under section 459E of the Corporations Law.

The court ruled that the advance made by Myer to Spacorp was not classified as moneys owing upon the termination of their agreement. Consequently, there was no genuine dispute concerning this matter. The court held that the terms of the agreement clearly indicated that the advance was a prepayment for services to be rendered by Spacorp, rather than a debt incurred upon the termination of the agreement. As a result, Myer was not entitled to rely on the genuine dispute provision to avoid satisfying the statutory demand issued by Spacorp.

The Supreme Court of New South Wales declared that the advance made by Myer to Spacorp did not constitute moneys owing upon the termination of their agreement. Consequently, Myer was obligated to satisfy the statutory demand issued by Spacorp.

Orders